The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.80 of 2019 In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 25th October, 2018 passed by the learned Additional Sessions Judge, Balliguda, District- Kandhamal in S.T. Case No.71 of 2017. ---- Brundaban Nayak …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Pratap Chandra Chhinchani (Advocate) For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE A.C.BEHERA Date of Hearing : 05.09.2023 : Date of Judgment:14.09.2023 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and the order of sentence dated 25th October, 2018 passed by the learned Additional Sessions Judge, Balliguda, District-Kandhamal in S.T. Case No.71 of 2017 arising out of G.R. Case No.49 of 2017 corresponding to CRLA No.80 of 2019 Page 1 of 14 - 2 - Daringbadi P.S. Case No.40 of 2017 of the Court of the learned
Legal Reasoning
Judicial Magistrate First Class (J.M.F.C.), Daringbadi. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo simple imprisonment for three (3) months for commission of the said offence. 2. Prosecution Case:- The then Forester attached to the Forest Division, Daringbadi, namely, Chitaranjan Dehury (informant-P.W.1), submitted a written report with the Inspector-in-Charge (IIC) of Darangibadi Police Station (P.S.) informing therein that on 20.09.2017, around 3.00 p.m., one unknown person had committed the murder of a Forest Guard, namely, Banita Digal in the officially allotted quarter of another Forest Guard attached to the Forest Office, Darngibadi, namely, Nibedita Lenka (P.W.10). Receiving the said report, the IIC (P.W.12) treated the same as the FIR and upon registration of the case, took up investigation. The Investigating Officer (P.W.12) immediately recorded the statement of the informant (P.W.1) and rushed to the spot. CRLA No.80 of 2019 Page 2 of 14 - 3 - There, he (P.W.12) saw this accused lying near Banita Digal in a critically injured condition and Banita Digal was then lying dead. The injured accused was shifted to Darnigbadi Community Health Centre (CHC) and therefrom, to the M.K.C.G., Medical College & Hospital, Berhampur for better treatment. 3. The I.O. (P.W.12), in course of investigation after his arrival at the spot, had held inquest over the dead body of the deceased in presence of the Executive Magistrate and prepared the report to that effect (Ext.2). He also examined other witnesses and had prepared the spot map (Ext.12). The dead body of the deceased was the sent for postmortem examination by issuing necessary requisition. He also seized a billhook under seizure list (Ext.7) and collected the sample blood with a gauze clothe from the spot and seized the same under seizure list (Ext.8). One Hero Honda Super Splendor motorcycle parked in front of the Forest Section Office had been seized under seizure list (Ext.3). The I.O. (P.W.12), after recovery of the injured-accused, arrested him on 09.04.2017 and forwarded him in custody to the Court. The seized incriminating articles were sent for chemical examination through Court. Thereafter, on completion of the investigation, the I.O. (P.W.12 submitted the Final Form placing the accused to face the Trial for commission of the offence under sections 302/309 of the IPC. CRLA No.80 of 2019 Page 3 of 14 - 4 - 4. Learned J.M.F.C., Daringbadi, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offences against the accused. 5. In the Trial, the prosecution, in support of its case, has examined in total twelve (12) witnesses. As already stated, the informant, who had lodged the FIR (Ext.10) and was then the Forester of Daringbadi Forest Section is P.W.1. The other Forest Guard, in whose officially allotted quarters, that Forest Guard, namely, Banita Digal was found lying dead and accused too was seeing in a injured condition has been examined as P.W.10. P.Ws.3 & 7 are two other Forest Guards whereas P.W.8 is the Deputy Forest Range Officer, who were residing in their respective allotted quarters in the premises of Daringbadi Forest Office. Two independent witnesses have been examined as P.Ws.2 & 4 and the Home Guards, who are the witnesses to the seizure are P.Ws.5 & 6. The mother of the Banita (deceased) has come to the witness box as P.W.11. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.9 and the I.O is P.W.12. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents CRLA No.80 of 2019 Page 4 of 14 - 5 - which have been admitted in evidence and marked Exts.1 to 21. Important of those, are the FIR (Ext.1); inquest report (Ext.2); the spot map (Ext.12), the discharge certificate of the accused (Ext.16) and the post mortem report (Ext.94). 6. The accused, in support of his plea of denial and false implication has, however, not tendered any evidence despite opportunity. 7. The Trial Court, having gone through the evidence of the doctor (P.W.9) and upon their analysis, has come to a conclusion that it is the accused, who had committed the murder of said Banita (deceased) in intentionally causing her death. Thus, the accused stood convicted for commission of the offence under section 302 of the IPC. Having held that the prosecution evidence is insufficient to bring home the charge against the accused under section 309 of the IPC, the accused has been acquitted of the said charge. Accordingly, the Trial court has imposed the sentence upon the accused, as afore-stated for the offence under section 302 of the IPC.
Legal Reasoning
8. Mr. P.C. Chhinchani, learned counsel for the Appellant (accused), in view of the evidence of the Doctor (P.W.9) and other witnesses, while not disputing the nature of death of Banita (deceased) to be homicidal, however, submitted that there being CRLA No.80 of 2019 Page 5 of 14 - 6 - no direct evidence to conclude on the complicity of the accused, the circumstances projected by the prosecution through the evidence let in during Trial, being cumulatively viewed, do not complete the chain of evidence in leaving no reasonable ground for the conclusion consistent with the innocence of the accused and from that, it is not possible to conclude that in all human probability, this accused had intentionally caused the death of Banita Digal (deceased) by inflicting injuries upon her. He further submitted that because the prosecution witnesses have simply stated to have seen this accused in the officially allotted quarters lying in a critical injured condition near Banita (decased), who was then dead, the Trial Court is not right in convicting the accused holding him guilty of the offence under section 302 of the IPC in specifically attributing the authorship of the injuries upon Banita (deceased) to the accused. He submitted that in view of the evidence that the accused was also then lying in a critically injured condition and he had to undergo treatment at the M.K.C.G. Medical College & Hospital for quite a long period, the Trial Court ought not to have completely ruled out the possibility of involvement of a third hand in causing the fatal injuries upon Banita (deceased) as well as this accused and that itself according to him, stands as the missing link. CRLA No.80 of 2019 Page 6 of 14 - 7 - 9. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State, while submitting all in favour of the finding of guilt against the accused, as has been returned by the Trial Court, contended that the prosecution, having proved the foundational facts that the accused and Banita (deceased) were together in the said quarter shortly before the detection of the dead body of Banita and injured-accused when as per the evidence Banita (deceased) was residing in that very quarter with the other Forester, namely, Nibedita Lenka (P.W.10) frequently since the accused is not coming forward with any sort of explanation, the burden of proof shifting upon him has not been elbowed and, therefore, the Trial Court is absolutely right in holding that it is the accused alone, who is the perpetrator of the crime. In support of the same, he has taken us through the depositions of the prosecution witnesses, which would stand discussion hereinbelow. 10. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 12) and have perused the documents admitted in evidence marked as Exts.1 to 21. CRLA No.80 of 2019 Page 7 of 14 - 8 - 11. The nature of death of Banita Digal as homicidal has been established through the evidence of the Doctor (P.W.9), who had conducted the autopsy over the dead body of Banita. He has clearly stated to have noticed several cut injuries and chopped injuries over different parts of the body of Banita including the Skull. On dissection, the Doctor (P.W.9) too has found multiple hemorrhage collection over brain matter. All these injuries have been stated to be ante mortem in nature and the death, according to him, was due to intra-cranial hemorrhage and massive bleeding leading to hypovolemic schock. The findings have been noted in his report (Ext.9). In course of investigation, a Katari had been sent for his chemical examination seeing his opinion as to if those injuries could be possible by that Katari (M.O.I) and his opinion vide Ext.10, proved by him was in the affirmative. With the evidence of the Doctor (P.W.9), we too find the evidence of the I.O. (P.W.12), who has noted such injures in the report (Ext.2) and that has also been stated by other witnesses, who had seen Banita lying dead with injuries. So, the prosecution is found to have fully established that Banita met a homicidal death. 12. It is correct to say that here the prosecution case is not that the incident had been seen by somebody when Banita received those injuries on her person, how such injuries came to be inflicted upon Banita and who inflicted the same. It has, however, CRLA No.80 of 2019 Page 8 of 14 - 9 - been amply proved through evidence and in fact is not disputed that Banita was seen lying dead in that official quarter, which had been allotted to the Forest Guard, namely, Nibedita Lenka (P.W.10). The deceased Banita was also a Forest Guard. It has been deposed by Nibedita (P.W.10) that Banita (deceased), though one elder to her and senior in service, was one of her close colleagues. She has stated that Banita was coming to Daringbadi and visiting her quarters very often. It is her evidence that on 18.03.2017, Banita had been to her quarter and stayed over-night and on the next day, she left. This P.W.10 has stated in clear terms that since Banita was very often coming to her quarter, she (P.W.10) had given a duplicate key of her quarter, which was to facilitate her free entry and exit to the house during the time of absence of P.W.10 as and when he used to come. She has then stated that on 12.03.2017 when she returned to the quarter after performing her duty, she found Banita and another male, whom she has identified in the Trial to be standing in dock being the accused. She has stated that on her query about the identity of that person (accused), Banita had described him to be her friend. This P.W.10 has stated that after that she had warned Banita (deceased) not to come with any male person to her quarter anymore. It is her evidence that thereafter they cooked food and she, after taking the meal, went to the office and it was around 2/2.30 p.m when she came back to the quarter, she found Banita CRLA No.80 of 2019 Page 9 of 14 - 10 - (deceased) lying dead in the bedroom and then accused was standing with a blood stained billhook (Kati). This P.W.10 has further stated that seeing this scene, she shouted out of fear and persons, namely, Paresh and Susanta rushed to her quarter and that they all when wanted to proceed close to Banita, the accused came rushing towards her (P.W.10) when she was driven out by that Paresh and Susanta. Her further evidence is that thereafter accused bolted the door from inside and continued to be there despite the hullah raised by them. It is also the evidence of P.W.10 that hearing the hullah, some other staffs and officers came to the quarter and they guarded all around and then Chitaranjan (informant-P.W.1) went to the P.S. to lodge the FIR. Her evidence is that thereafter police, having arrived, the door was opened by using force and it was seen that Banita (deceased) then was lying dead with injuries over her body and accused too was lying there in a critical injured condition. During cross- examination, what we find that the defence has elicited some statement, which rather reinforce her evidence given during the examination in chief. She has stated that on her arrival, she found Banita lying dead on the floor while honestly stating to have not seen the incident as to who had inflicted those injuries upon Banita. But no such material has been elicited from her to doubt her version that on her return to the quarter around 2/2.30 p.m, she (P.W.10) found Banita lying dead and accused standing with CRLA No.80 of 2019 Page 10 of 14 - 11 - a bloodstained Kati near her and that the accused, after some hue and cry, closed the door from inside and remained there till the door was broke open in presence of police, who arrived on receipt of the FIR (Ext.1) from the informant (P.W.1) and it was discovered that the accused then too was lying being injured. 13. P.W.1, after having lodged the FIR (Ext.1), had gone with the police to the place and it is stated by him that the door, being broke open, he, with the police personnel entered into the quarter and found Banita lying dead and accused in a seriously injured condition. It has not been elicited form him that they had seen anyone-else inside. So, the evidence of P.W.10 finds full corroboration from the evidence of P.W.1 that the door of the quarter was closed from inside and that being opened, Banita was found lying dead and accused too was found in a critically injured condition. The evidence of P.W.1 then again find corroboration from the evidence of P.W.3, who has stated that he had been to the quarters of Nibedita (P.W.10) and seeing Banita lying dead on the floor with severe cut injuries on her head and hand, accused was then in that room carrying a billhook (Kati) and he (accused) taking note of their presence, bolted the door from inside and continued there. It is also his evidence that police when arrived, they broke open the door and then saw with the CRLA No.80 of 2019 Page 11 of 14 - 12 - dead body of Banita and the injured too was lying in a critical injured condition. 14. P.W.7 is found to have stated that Nibedita (P.W.10) had told her that on that day, one person had accompanied Banita (deceased) to her quarter and he too had seen Banita lying dead and accused then in a critical condition. At the same time, we find the evidence of P.W.8 to the effect that P.W.7 was then working as a Forest Guard and he (P.W.8) was the Deputy Forest Range Officer. The I.O. (P.W.12) very categorically in his evidence has stated that immediately after receipt of the FIR (Ext.1), he rushed to the spot, i.e., the quarter of Nibedita (P.W.10) and found the door of the house to have been bolted from inside and breaking upon the door, when he entered, he saw Binita lying dead and accused in that very room was in a dying condition. Thus, we find that the evidence of the prosecution to be wholly acceptable in arriving at a conclusion that this accused and Banita were together in the quarter and when Nibedita (P.W.10) arrived, the accused was found near Banita, who was then lying with severe injuries on her persons and that the accused then was carrying the billhook (Kati), We also find that the evidence of the prosecution witnesses, as above discussed, to be wholly reliable in saying that the accused, seeing Nibedita (P.W.10) and others, went inside the house and bolted the door CRLA No.80 of 2019 Page 12 of 14 - 13 - from inside and when he was later on seen in that quarters, after the door was broken by police personnels including P.W.10 and others, he was then in a critically injured condition lying in that room where Banita was lying dead. When above reliable evidence as have been tendered by the prosecution, the accused has offered absolutely no explanation. Thus, here is a case where the prosecution having proved the above fundamental facts; the facts as to how the incident took place that Banita (deceased) received the fatal injuries on her person when the accused was with her in that quarter, were within the special knowledge of the accused. In that situation, the accused, having not been able to elbow the burden of proof as to how all these happened to Banita and he too sustained those injuries on his person being with Banita in the quartet, the Trial Court is found to have committed no error in finally concluding that it is the accused, who is the author of such injuries received by Banita (deceased). Therefore, in our considered view, the judgment of conviction and order of sentence, which are impugned in this Appeal, are well in order and do not warrant interference. 15.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 25th October, 2018 passed by the learned Additional Sessions Judge, Balliguda, CRLA No.80 of 2019 Page 13 of 14 - 14 - District-Kandhamal in S.T. Case No.71 of 2017 are hereby confirmed. A.C.Behera, J. I Agree. (D. Dash), Judge. (A.C.Behera), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 21-Sep-2023 17:20:21 CRLA No.80 of 2019 Page 14 of 14